SPECIAL OCCASIONAL PAPER “July 20, 1944 – Who Were the Traitors? the Legal Perspective of Operation Valkyrie”
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2009/#1 SPECIAL OCCASIONAL PAPER “July 20, 1944 – Who Were the Traitors? The Legal Perspective of Operation Valkyrie” An address by Dr. Hansjörg Heppe Director of the Dallas Warburg Chapter, Associate Attorney at Locke Lord Bissell & Liddell LLP, and ACG Young Leader Alumnus (2006) before the Dallas Eric M. Warburg Chapter of the American Council on Germany January 11, 2009 Dallas, Texas Operation Valkyrie was a plan devised by Adolf Hitler to suppress civil unrest that might be triggered by insurgencies in labor or concentration camps within Nazi Germany. Colonel Klaus Count Stauffenberg and other resistance fighters rewrote this plan to include civil unrest caused or utilized by Nazi leaders. Their intention was to: (1) kill Hitler; (2) blame Hitler’s death on his rivals within the Nazi regime; (3) set Operation Valkyrie in motion in order to (a) arrest all Nazi leaders, and (b) dismantle the SS, SA, and all other Nazi organizations; (4) shut down the concentration camps and release their prisoners; and (5) restore order and dignity in Germany. On July 20, 1944, Stauffenberg flew from Berlin to the Wolf’s Lair, the eastern-front military headquarters of the German high command in what is now Poland, to participate in a briefing of Hitler. During that briefing, Stauffenberg managed to deposit an explosive device in close proximity to Hitler and then left the briefing before the device went off. Hitler escaped the blast uninjured. Unaware that the plan to kill Hitler had failed, Stauffenberg returned to Berlin to participate in Operation Valkyrie. Also on July 20, 1944, Major Otto Remer was the commanding officer of the Regiment Gross-Deutschland, the guard of Berlin, and a strong supporter of the Nazi regime. Remer’s superior and Commander of the City of Berlin, General Paul von Hase, was a member of the resistance. Von Hase ordered Remer, as part of the Valkyrie execution, to block off and protect the Bendlerblock, the German World War II equivalent of the U.S. Pentagon, and other important governmental buildings in the center of Berlin. Stauffenberg and the other resistance fighters ran Operation Valkyrie out of the Bendlerblock. First, while not knowing that Stauffenberg had carried out the assassination attempt on Hitler and set Operation Valkyrie in motion, Remer executed von Hase’s order. Stauffenberg and the other resistance fighters were safe inside the Bendlerblock. Then, one of Remer’s lieutenants who had good connections to the Ministry of Propaganda asked Remer to see Minister Dr. Joseph Goebbels, Secretary for Propaganda and one of the leading Nazis, to explain the current exercise. (To intensify the drama of that day, the Tom Cruise movie depicts Remer arriving with a warrant issued by Stauffenberg for Goebbels’ arrest.) From his office, Goebbels phoned the Wolf’s Lair, got Hitler on the line, and handed the phone to Remer. Hitler, being Commander-in-Chief, ordered Remer to abandon Operation Valkyrie and arrest the traitors behind it. Remer executed Hitler’s order. At the end of World War II, Remer’s rank was General Major. After World War II, Remer remained a Nazi and became one of the leading members of the Sozialistische Reichspartei (SRP), which was found “anti-constitutional” and therefore prohibited by the German Constitutional Court in October of 1952. In 1951, Remer was campaigning for the SRP in Lower Saxony. While campaigning, he made continuous references to the resistance fighters of July 20, calling them traitors. After various complaints had been filed, the District Attorney for the Brunswick region, Generalstaatsanwalt Fritz Bauer, personally pursued the matter. In 1952, Germans did not hold the resistance fighters from the Nazi period in particularly high esteem. The public’s attitude was shaped by a complex and complicated mix of national experiences and lack of available information: Immediately after the attempt on his life, Hitler called the resistance fighters “an extremely small clique of ambitious, unscrupulous, and at the same time foolish, criminally stupid officers” who had hatched a plot to remove him and the staff of the German high command in order to assume power for themselves. 1 In the remaining months of the Nazi regime, the known resistance fighters were arrested; stripped of all privileges, if they had any; and tried in the Volksgerichtshof, a special court founded by the Nazis in 1934 in order to deal with persons opposing the Nazi regime. The Volksgerichtshof was first used to silence Nazi critics such as Social Democrats and members of the German Communist Party. During its existence, the Volksgerichtshof issued more than 18,000 sentences that became harsher over time. For example: In 1936, the Volksgerichtshof handed down 11 death sentences. In 1943, it sent 1,662 Germans to the gallows. By 1945, some 5,200 Germans had been executed for treason after being convicted by the Volksgerichtshof. In the aftermath of Operation Valkyrie, more than 2,000 Germans were arrested; some 500 resistance fighters were executed as traitors. As resistance to Hitler grew in Germany, the Allies ignored it. The United States and the United Kingdom referred to Operation Valkyrie as “the Generals’ Plot.” And in 1944, their enemies were both the Nazis and the Generals. The Allies wanted peace with neither. Thus, on July 21, 1944, the BBC broadcasted the names of all Germans who had contacted Englishmen since 1939 seeking an amicable way to end World War II. The Nazis did not need to do much interrogation that day; taking notes while listening to the radio sufficed. Two weeks later, Prime Minister Winston Churchill commented on the incident in the UK Parliament, saying: “The highest personalities of the German Reich are murdering one another, or trying to, while the avenging armies of the Allies close upon the doomed and ever-narrowing circle of their power.” He did not give the resistance fighters any moral credit. By 1952, despite being aware of the atrocities committed by Nazi Germany and having witnessed the Nuremberg trials from 1946 to 1949, many Germans still accepted the Volksgerichtshof label given to the resistance fighters. They thought they were traitors. Public attitudes were also influenced by the lack of an official German government position on Nazi Germany. Founded on May 23, 1949, less than two years before Remer’s campaign activities, the Federal Republic had not yet come to grips with Germany’s Nazi past. For example, unlike other widows and orphans of German war veterans, those of the resistance fighters received no pensions from the German government. And finally, Germany’s loss in World War II added to the unresolved German trauma of World War I. Many Germans believed World War I was lost because they did not stand together as closely as a people as they should have. For example: (1) The Social Democratic majority of German Parliament denied General Erich Ludendorff, Chief of Staff of the German Army, the funds for the army that he claimed were necessary to win the war. (2) Labor strikes were common. By 1917, there had been roughly 500 strikes resulting in more than 2,000,000 total lost workdays, eroding the power of the German economy necessary to win the war. Or, (3) the forced abduction of Emperor William II, who was Commander-in- Chief, in November 1918 and the surrender of Germany that same month, while no foreign soldier was on German soil. All that led to the Dolchstoßlegende (the “Stab-in-the-back Legend”). To the average German, had the resistance fighters not done exactly the same thing? Did they not disunite the leadership of the German military to an extent that it lost the power that may have been necessary to win the war? What else could the resistance fighters be but traitors? Against this backdrop, D.A. Bauer pursued criminal charges on behalf of (1) the government, (2) a resistance fighter who had survived the war, and (3) certain surviving dependents of resistance fighters (such as the son of General von Hase) who had been executed as traitors, against Remer for slander, an offense that may not only trigger civil but also criminal consequences under German law. To win, the 2 prosecution had to prove that the resistance fighters did not betray Germany or their superiors. It had to prove that Remer’s statement was not true. The prosecution based its proof of non-truth on multiple arguments: First, that the actions of the resistance fighters in attempting to kill Hitler did not constitute a crime at all. Second, that treason is an act of betrayal of one’s government. If the regime in power, however, is not legitimate, then there is no duty of loyalty. And finally, D.A. Bauer argued that treason is not possible without the intent to be treasonous. In more detail: To prove his first argument, that the actions of the resistance fighters in attempting to kill Hitler did not constitute a crime at all, D.A. Bauer introduced the expert testimony of three theologians who professionally researched ethics and morals (Moraltheologen). All of them were of the opinion that there was no moral shadow on the actions by the resistance fighters in connection with Operation Valkyrie. The resistance fighters were acting in compliance with German moral and ethical principles. According to D.A. Bauer, “How can actions constitute a criminal offense, and therefore be treason, if such actions comply with ethics and morals?” Ethics and morals typically impose obligations beyond the minimum standards of conduct required to trigger punishment under criminal law. If actions in compliance with higher ethical standards are punishable under criminal law, such law must be wrong. The execution of Operation Valkyrie can therefore not be referred to as the commission of a crime and the persons involved in it cannot be referred to as traitors.